`DISTRICT CONSUMER DISPUTES REDRESSAL FORUM  PALAKKAD

Dated this the  23^rd  day of December 2017

Present   : Smt.Shiny.P.R. President

               : Smt.Suma.K.P.  Member                                 Date of filing:  16/03/2016

               : Sri.V.P.Anantha Narayanan, Member                                            

   (C.C.No.43/2016)

Akbar,                                                                                     - Complainant

S/o Sulaiman,

10/224, Puthukulangara,

Anjam Mail, Pirayiri,

Kodunthirappully Post,

Palakkad.

(Adv.K.P.Nouphal)

                                                                            Vs

1.  Mahindra and Mahindra Financial Service Ltd.,                    -  Opposite parties

    2^nd Floor, Sadhana House, Behind Mahindra Towers,

    570, PB Murg, Worli, Mumbai, Maharashtra

    Pin – 400 018 Represented by its Managing Director.

2.  Mahindra and Mahindra Financial Service Ltd,

    Palakkad Branch Office, Opposite to Petorl Pump,

    Near Post Office, Chandranagar,

    Palakkad Represented by its Manager

    (Adv.Viju.K.Raphel)

O R D E R

By Smt.Shiny.P.R, President ,

            Brief facts of the complaint is that  the complainant had purchased a Tractor bearing Registration No.KL-09-AG-4928 by availing financial assistance for an amount of  Rs.4,50,000/- (Four Lakhs fifty thousand only) from the opposite parties.  Complainant submitted that at the time of availing the loan the opposite parties obtained so many numbers of blank signed white papers, unfilled printed papers, and revenue stamp affixed white blank signed papers and blank signed papers and blank signed stamp papers and the black signed cheque leaves of the complainant as well as guarantor by saying that those are a necessary for completing the formality of the HP transaction.  The vehicle was purchased by the complainant exclusively to find his livelihood by means of self employment.  Complainant further submitted that the terms of hypothecation was that the complainant has to repay the loan amount of Rs.4,50,000/- by way of 40 monthly installments @ Rs.15,500/- per month including interest/hypothecation charges.  Meanwhile the complainant was unable to pay the installments in time due to the financial crises. However he all together repaid a sum of Rs.2,70,000/- to the opposite parties through their agent.  Many times the collection agent not properly issued the receipt of payment made by the complainant.  On 01.02.2016 complainant approached the 2^nd opposite party and requested to settle the loan by receiving the balance amount in lump sum legally due to them.  At that time, the 2^nd opposite party obtained all the receipts issued by them to the complainant saying that they need the same for account verification and asked the complainant to come to the office after 15 days.  Thereafter on 22.02.2016 complainant approached the 2^nd opposite party and requested to settle the matter legally. At that time the opposite party told the complainant to repay a sum of Rs.5,45,000/- to settle the dues.  Complainant was not ready to pay   this exorbitant amount and demanded to return the receipts obtained from him for verification and for which the 2^nd opposite party was unwilling.  Complainant submitted that 2^nd opposite party threatened the complainant that if this exorbitant amount is not paid they will seize the vehicle by force.    The demand for the payment of Rs.5,45,000/- by the opposite party is illegal and amounts to respective trade practice and also unfair trade practice.  Due the act of the opposite parties the complainant met heavy financial loses to the tune of Rs.2,00,000/- as well as mental agony to tune of Rs.50,000/- which are legally liable to be compensated by the opposite parties. Hence the complaint.   The complainant prays for an order directing the opposite parties

1. to pay an amount of Rs.2,50,000/- towards the deficiency in service, mental agony, damages and compensation ,
2. to return the blank signed white papers, unfilled printed signed papers, and Revenue Stamp affixed white blank signed papers and blank signed stamp papers and the blank signed cheque leaves of the complainant along with necessary endorsement and other relevant records to cancel the hypothecation of RC of the vehicle after obtaining the amount legally due to them from the complainant and
3.  to pay the entire cost of this proceedings to the complainant.

Complaint was admitted and notices were issued to opposite parties. After receiving the notice opposite parties entered appearance and filed their version contending the following:-
Opposite parties admitted that the complainant had availed a loan for the purchase of ‘swaraj tractor 744’ manufactured by Mahindra & Mahindra Ltd. by executing a loan cum hypothecation agreement on 30.10.2013 with this opposite parties.  The total loan amount availed by the complainant including the interest was for an amount of Rs.7,58,400/-.  The complainant had agreed to repay the said amount in 48 equal monthly installment at the rate of Rs.15,800/- per month.  The complainant had also agreed to pay additional finance charges for every default committed by him in paying the equal monthly installment, and other charges, as per the terms of agreement entered into between the complainant and the opposite parties.  The contention of the complainant that at the time of availing the loan the opposite parties obtained so many number of blank signed white papers, unfilled printed papers and revenue stamp affixed white black papers and blank signed stamp paper and bland signed cheque leaves of the complainant as well as that of his guarantor by saying that those are necessary for completing the formality of the HP transaction etc. is denied by the opposite parties.  As per the account maintained by this opposite parties, during the course of business, the complainant has a loan account balance of Rs.6,08,347/- as on 04.05.2016.  The complainant is bound by the terms of agreement entered

into between complainant and opposite parties.  The complainant has admitted in the complaint that he had entered into a loan cum hypothecation agreement with this opposite parties and that the hypothecation endorsement is made in RC book.  Now the complainant cannot approbate and reprobate about the existence of loan cum hypothecation agreement.  Once he had entered into agreement, he is bound by the terms of agreement.  These opposite parties are always ready and willing to do the necessary documentation work for releasing the HP endorsement and to issue No Objection Certificate, if the complainant pays the entire loan account balance.   Admittedly the complainant is a chronic defaulter of loan account repayment.  Now the attempt of the complainant is to somehow use the vehicle, which is on the hypothecation with this opposite party, without making the payment towards the loan account through the equated monthly installment, and there by reap illegal enrichment with the aid of this Hon’ble Forum.  This complaint is not maintainable before this Hon’ble Forum since the vehicle is used for commercial purpose.  The opposite parties have not acted in any derogation of law against the complainant.  The complainant has not paid the entire dues towards the loan account.  This complaint is only a preemptive attempt by the complainant to somehow escape from the liability towards the opposite parties and to stop further action from the opposite parties to recover the outstanding dues towards the loan account.  There is no deficiency of service on the part of opposite party.  The Forum lacks jurisdiction to entertain the complaint since both parties have agreed for arbitration of the all disputes and clause of arbitration is there in clause 15 of the agreement entered between the complainant and the opposite parties.  Section 8 of the Arbitration and Conciliation Act is bar on the proceedings before any judicial authority before which an action is brought in matter, which is the subject of an arbitration agreement. 

Complainant and opposite parties filed their respective chief affidavit. Exts A1 andA2 marked on the side of complainant. Exts B1 and B2 marked from the side of opposite party. Complainant filed interrogatories to opposite party and opposite party filed answers to the same. Opposite parties filed interrogatories to complainant and complainant filed answers to the same. 

The following issues that arise for consideration are.

1. Whether the complaint is maintainable before the Forum?
2. Whether there is any deficiency of service from the part of opposite parties ?
3. If so what are the relief and cost?

Issue No.1

We have perused the affidavits and documents filed before the Forum. One of the contentions of the opposite parties is that the Forum lacks jurisdiction to entertain the complaint since both parties have agreed for arbitration of the all disputes. Opposite parties contended that  section 8 of the Arbitration and Conciliation Act is the bar on the proceedings before any judicial authority before which an action is brought in matter, which is the subject of an arbitration agreement. But, As per Section 3 of the Consumer Protection Act 1986 the remedy under the Act is an additional remedy and complainant not debarred from approaching Consumer Forum for the redressal of his grievances even if there is an arbitration clause in the agreement. Another contention of the opposite parties is that the complaint had purchased the tractor for commercial purpose and hence he is not a consumer as defined under the Act. In the complaint complainant submitted that he has purchased the tractor exclusively to find his livelihood by means of self employment. Opposite parties did not adduce any evidence to prove that complainant is using the tractor for commercial purpose.  In the above circumstances we are of the view that complainant is a consumer under section 2 (1) (d) of the Consumer Protection Act 1986. Hence the complaint is maintainable before the Forum.

Issues 2&3

Ext. B1 loan agreement clearly reveals the fact that complainant has availed a loan for an amount of Rs. 4,84,191/- from the opposite parties and had agreed to repay the said amount in 48 equal monthly installment at the rate of Rs.15,800/- per month including interest i.e, as per agreement complainant has to pay an amount of Rs.7,58,400/- (including interest) to the opposite parties. Complainant admitted in his complaint that he has paid Rs 2,70,000/- towards the loan account and he could not repay the installments properly due to the financial crisis. As per Ext. B2 it is seen that complainant has already paid 2,37,400/- towards the loan account and the arrears of the loan account is Rs 2,52,400/-  as on 4-5-2016. As per the account statement the first installment date is 30-10-2013 and last installment date of the loan account is 30-09-2017. Complainant has filed the complaint before the Forum on 15-03-2016.  Till the date of filing of the complaint admittedly he has paid 2,70,000/- to the opposite parties towards the loan account. It is seen that complainant is a chronic defaulter in paying the equal monthly installments. Since the complainant did not repay the loan properly, he has the liability to pay the loan amount along with penal interest to the opposite parties. Complainant admitted that there was an agreement between the complainant and the opposite parties. Complainant did not produce the copy of agreement before the Forum. At the same time opposite parties produced the hypothecation agreement executed between complainant and opposite parties which was marked as Ext. B1.  On the perusal of Ext. B1 it is seen that the complainant and opposite parties signed the document on 30-10-2013. At the time of evidence, marking of the above said document is not objected by the complainant. Hence the complainant is bound by the terms of agreement entered into between complainant and opposite parties. After considering the above facts we are of the view that the complainant is failed to prove his case.  In the above circumstances we cannot attribute deficiency in service on the part of opposite parties.

Hence we dismiss the complaint.

Pronounced in the open court on this the 23^rd  day of December 2017.

                                                                                                                               Sd/-

                           Shiny.P.R.

                           President 

                                Sd/-         

                           Suma.K.P.

                            Member

      Sd/-

    V.P.Anantha Narayanan

                           Member

Appendix

Exhibits marked on the side of complainant

Ext.A1  -  Photo copy of RC Book

Ext.A2  - Copy of letter dated.29.02.2016 issued by opposite party

                to the complainant

Exhibits marked on the side of Opposite parties

Ext.B1  -  Original Loan Agreement

Ext.B2  -  Photo copy of statement of account dated.04.05.2016

Witness examined on the side of complainant

Nil

Witness examined on the side of opposite party

Nil

Cost   

            Nil